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OF PARENTS AND CHILDREN.

CHAPTER 262.

OF PARENTS AND CHILDREN.

AN ACT Relating to Desertion and Non-Support of Wife by Husband,

or of Children by Either Father or Mother and Providing Punishment Therefor.

Be it enacted by the Senate and House of Representatives of the State of Delaware in General Assembly met (two-thirds of all the members elected to each House concurring therein):

desertion or

vide for wife

children

Section 1. That any husband who shall, without just Penalty for cause, desert or wilfully neglect or refuse to provide for neglect to prothe support and maintenance of his wife in destitute or by husband necessitous circumstances, or any parent who shall, without lawful excuse, desert or wilfully neglect or refuse to provide for the support and maintenance of his or her legitimate or illegitimate child or children, under the age Support of of sixteen years, in destitute or necessitous circumstances, shall be guilty of a misdemeanor, and on conviction thereof shall be punished by a fine, not exceeding five Misdemeanor hundred dollars, or by imprisonment with hard labor in such penal or reformatory institution of this State as may be determined upon by the Court, for a period not exceeding one year, or both. And it is hereby made the duty of the parent of any illegitimate child or children, under the age of sixteen years, to provide for the sup- mi port and maintenance of such illegitimate child or chil children dren.

Illegitimate

proceedings

Section 2. Proceedings under this Act may be insti- Institution of tuted upon complaint made under oath or affirmation by under this act the wife or child or children, or by any other person,

OF PARENTS AND CHILDREN.

against any person guilty of either of the above named

offenses. The Court of General Sessions, and, the MuniJurisdiction cipal Court for the City of Wilmington shall have orig

inal and concurrent jurisdiction in all cases arising under this Act, and unless the accused shall demand a trial

by jury the trial shall in each case be by the Court withTrial without out a jury, subject to the right of the accused to appeal

as provided by law in other cases: Provided, however, that the proceedings, under this Act, in the Municipal Court for the City of Wilmington shall be without indictment by grand jury or trial by petit jury.

jury unless accused demands same

Temporary order for sup

entered by

trial

Section 3. At any time before trial, upon petition of port may be the complainant, and upon notice to the defendant, the Judge before Court of General Sessions or a Judge thereof in vaca

tion, or the City Judge of the Municipal Court for the City of Wilmington, may enter such temporary order as may seem just, providing for the support of the deserted wife or children, or both, pendente lite, and may punish for violation of such order as for contempt.

tion the Court

* order instead of imposing penalty

Subject to change

At its discre. Section 4. Before the trial, with the consent of the may make defendant, or at the trial, on entry of a plea of guilty, or

after conviction, instead of imposing the penalty hereinbefore provided, or in addition thereto, the Court in its discretion, having regard to the circumstances, and to the financial ability or earning capacity of the defendant, shall have the power to make an order, which shall be subject to change by the Court from time to time, as cir

cumstances may require, directing the defendant to pay To pay a sum a certain sum periodically to the wife, or the guardian,

or custodian of the said minor child or children, or to an organization or individual approved by the Court as trustee, and to release the defendant from custody on probation, upon his or her entering into a recognizance, with or without surety, in such sum as the Court or a Judge thereof in vacation may order and approve. The

regularly

Release on probation

OF PARENTS AND CHILDREN.

condition of the recognizance shall be such that if the
defendant shall make his or her personal appearance in
Court whenever ordered to do so, and shall further com-
ply with the terms of such order of support, or of any.,
subsequent modification thereof, then such recognizance
shall be void, otherwise in full force and effect.

Section 5. Whenever the Court of General Sessions Probation may deem it necessary or desirable, it may appoint one officers or more discreet persons of good character to serve as probation officers, during the pleasure of the Court, for the performance of such duties as the Court shall direct. Said probation officer or officers shall receive a salary to be determined by the Court, but such compensation Salary shall not exceed one hundred dollars per month for each officer; and this, together with the necessary expenses incurred while in the actual performance of duty, shall be paid monthly by the Levy Court Commissioners of the county, upon the order of the Court.

Probation

Section 6. It shall be the duty of the probation officer Duties of or officers so appointed to make such investigation as Oficers may be required by the Court, to be present in court when the case is heard, and to furnish to the Court such information and assistance as the Court may require, and to take charge of any defendant, before or after trial, as may be directed by the Court. In no case, however, shall a defendant be committed to the custody of a pro- sex bation officer of the opposite sex.

Section 7. If the Court be satisfied by information and due proof under oath that the defendant has violated the terms of such order, it may forthwith proceed with the trial of the defendant under the original conviction, or enforce the suspended sentence, as the case may be. Courtmayin In case of forfeiture of a recognizance, and enforcementiri thereof by execution, the sum recovered may, in the dis

- trial if order is violated

OF PARENTS AND CHILDREN.

cretion of the Court, be paid in whole or in part to the wife, or the guardian, custodian or trustee of the said minor child or children.

Evidence necessary

Confidential communication between husband and wife

Proof of desertion

Section 8. No other or greater evidence shall be required to prove the marriage of such husband and wife, or that the defendant is the father or mother of such child or children than is or shall be required to prove such facts in a civil action. In no prosecution under this Act shall any existing statute or rule of law prohibiting the disclosure of confidential communications between husband and wife apply, and both husband and wife shall be competent and compellable witnesses to testify against each other to any and all relevant matters, including the fact of such marriage and the parentage of such child or children: Provided that neither shall be compelled to give evidence incriminating himself or herself. Proof of the desertion of such wife, child or children, in destitute or necessitous circumstances, or of neglect or refusal to provide for the support and maintenance of such wife, child or children, shall be prima facie evidence that such desertion, neglect or refusal is wilful.

Section 9. An offence under this act shall be held to have been committed in any county in which such wife, child or children may be at the time such complaint is made. It shall be the duty of the State, in any case in which application is properly made by the officers responsible for the execution of the law, to provide the funds necessary for the extraditing of any person charged with an offience under this act who has gone to another state.

Section 10. Whenever the Court shall sentence a husfor imprison- band or parent to imprisonment at hard labor under the

provisions of this act, said husband or parent shall be entitled to receive for his labor the sum of fifty cents per day for each day, Sundays and legal holidays only ex

County jurisdiction over offense

Per diem pay for imprisonment under this act

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OF PARENTS AND CHILDREN.

port of wife

cepted, during which said husband or father is imprisoned at hard labor, the same to be paid by the official in charge of the penal or reformatory institution in which said husband or father is imprisoned, to the wife or to the probation officers, or to the person or persons, or so- To go to supciety, named in the order of Court as trustee for the wife or child or children. Such sum, with the lodging and food furnished such husband or father, shall be considered the wages paid by such institution for the labor of such husband or father, and shall be paid as one of the general running expenses of such institution.

Section 11. Whenever any person is receiving support under an order of Court in any other proceeding, civil, criminal or quasi-criminal, in this State, said person shall not be entitled to an order of support against the same defendant under this act; provided that if the defendant in such other proceeding shall fail to obey said order of Court, said person shall be entitled to the benefit of this act and said defendant shall be subject to the provisions of this act.

Section 12. This act shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it.

229, Vol. 18

Vol 18

Section 13. That Section 1 of Chapter 229, Volume 18, Sec. 1, Chap. Laws of Delaware, and Chapter 230, Volume 18, Laws of and Chap. 230 Delaware, and all amendments thereto, be, and the same repealed are hereby repealed: Provided however, that nothing contained in this Act shall repeal, alter or in any way ef- Chapters 48 fect the validity of Chapters 48 and 77, Revised Code, code? Laws of Delaware.

Not to effect

and 77 of Rev.

constitutional

Section 14. If it shall be decided that any provision in If act is un. this Act is unconstitutional, the intent of the legislature is hereby expressed that said provision only shall be void

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